Paulding and Australian Electoral Commission
[2000] AATA 202
•2 March 2000
DECISION AND REASONS FOR DECISION [2000] AATA 202
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/397
GENERAL ADMINISTRATIVE DIVISION )
Re ANNE WILLIS PAULDING
Applicant
And AUSTRALIAN ELECTORAL COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date2 March 2000
Place Sydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/397
)
GENERAL ADMINISTRATIVE DIVISION )
Re ANNE WILLIS PAULDING
Applicant
AndAUSTRALIAN ELECTORAL COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 2 March 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is affirmed.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
ELECTORAL - Enrolment on Commonwealth Electoral Roll. Whether a British citizen permanently resident in Australia may be enrolled. Name on rolls before and after 25 January 1984 but not on that date. No discretion to permit enrolment.
Statute Law (Miscellaneous Amendments) Act 1981 - s32
Commonwealth Electoral Act 1918 - s93
REASONS FOR DECISION
17 March 2000 Senior Member M D Allen
At the conclusion of the hearing of this application for review the Senior Member who constituted the Tribunal stated orally the terms of the decision intended to be made. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to subsection 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision. Those reasons are now stated below accordingly and will be furnished to the Respondent and to the Applicant.
By application lodged 21 April 1999, the Applicant sought review of the decision by the Respondent on 15 January 1999 affirming a prior decision rejecting her claim for enrolment on the Commonwealth Electoral Roll.
On 5 October 1998 an enrolment form signed by the Applicant was received by the Returning Officer for the Electoral Division of Hume. On that form the Applicant ticked a box indicating that she was not an Australian citizen.
As the Divisional Returning Officer was unable, from the information included on the form completed by the Applicant, to determine the Applicant's citizenship eligibility for enrolment, a further questionnaire was forwarded to her.
On 6 November 1998 a form was received by the Divisional Returning Officer for Hume, signed by the Applicant, indicating that the Applicant had been born in the United Kingdom and was not an Australian citizen by naturalisation.
Pursuant to Part IX of the Statute Law (Miscellaneous Amendments) Act 1981, the then section 39 of the Commonwealth Electoral Act 1918 was amended by omitting paragraph (1)(b) thereof and substituting the following paragraph:
"(b) who are –
Australian citizens; or
British subjects (other than Australian citizens) who were electors on the date immediately before the date fixed under sub-section 2(5) of the Statute Law (Miscellaneous Amendments) Act 1981."
The date so fixed under the said Statute Law (Miscellaneous Amendments) Act 1981 was 26 January 1984 as per proclamation in the Commonwealth of Australia Gazette of Monday 17 October 1983.
As a result of the abovementioned amendments as at 26 January 1984, the qualifications for enrolment and voting were as follows:
"93. (1) Subject to sub-sections (7) and (8) and to Part VIII, all persons –
who have attained 18 years of age; and
who are:Australian citizens; or
British subjects (other than Australian citizens) whose names were, immediately before the date fixed under sub-section 2(5) of the Statute Law (Miscellaneous Amendments) Act 1981 –
(A)on the roll for a Division; or
(B)on a roll kept for the purposes of the Australian Capital Territory Representation (House of Representatives Act 1973 or the Northern Territory Representation Act 1922,
shall be entitled to enrolment."
It will be noted that the former section 39 of the Commonwealth Electoral Act has been renumbered section 93.
In evidence, the Applicant stated that she had been enrolled as an elector prior to 1983 at her address of 86 Surrey Street, Darlinghurst. Document T3 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a copy of an enrolment form, lodged by the Applicant and dated 22 June 1980 showing her as residing at 86 Surrey Street, Darlinghurst. On or about 26 February 1982, the Applicant moved to Watkins Street, Bondi.
As a result of no longer residing at 86 Surrey Street, the Applicant was removed from the Electoral Roll following objection on 4 February 1983. That objection followed a review of the Electoral Roll conducted shortly before the election held in early 1983.
Subsequently the Applicant has enrolled for various electorates and her enrolment has been accepted and she has thus been permitted to vote. It would appear that on other occasions the Applicant has indicated that she was an Australian citizen, although in these proceedings she readily admitted she was not. It was only after her eligibility was questioned in 1998 that an investigation revealed that she was not entered upon the Commonwealth Electoral Roll as at 25 January 1984.
Document T10 in these proceedings consists of extracts from the Commonwealth Electoral Rolls for all States and Territories and from a National list of reinstatements to 25 January 1984. The Applicant's name does not appear on any of those documents.
I am satisfied on the basis of those extracts from the Electoral Rolls, and by virtue of the fact no evidence was adduced by the Applicant to cast doubt upon their accuracy, that as at 25 January 1984 the Applicant was not an elector.
This being so, the Applicant is clearly within the provisions of s93 of the Commonwealth Electoral Act 1918 (as amended) and is not entitled to be enrolled as an elector under that Act as, as at 25 January 1984, she was a British subject and not entered on any Electoral Roll. Therefore the decision under review must be affirmed.
I understand the Applicant's sense of grievance in that prior to 1998, she has voted in elections but that entitlement was granted in error. I also accept, as I was informed from the bar table, that if a would be elector asserts a right to vote, although not on the roll, a voting paper is made available but that vote is subject to a ruling by the Electoral Officer. This is an explanation for the Applicant stating that she did vote in the 1983 election.
As pointed out above, whatever may have happened in the past I am satisfied that the Applicant is disqualified pursuant to the now s93 of the Commonwealth Electoral Act, consequently the decision under review is affirmed.
I certify that the 15 preceding paragraphs are a true copy of the reasons for the decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic .....................................................................................
AssociateDate/s of Hearing 2 March 2000
Date of Decision 2 March 2000
Solicitor for Applicant Applicant self-represented
Advocate for the Respondent Mr L McGrath,
Australian Electoral Commission
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